The tenant is pursuing the landlord for 3 x deposit for a failure to protect the deposit within 14 days (the deposit has been protected though albeit late). The landlord is counter-claiming over £3,000 in rent arrears and defending the deposit claim. However, the tenant has provided a P.O. Box for his address. This of course would make it difficult to enforce any judgement if the landlord was successful. Is a former tenant allowed to proved a P.O. Box as an address for the purpose of sending documents in relation to court proceedings?

Answer:

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Part 6 of the Civil Procedure Rules governs the rules of service. The first part governs service of the claim form and the second part governs service of other documents not being the claim form.

In relation to service of documents not including the claim form (because in this example the landlord is not serving a claim form as the tenant instigated proceedings), Civil Procedure Rule 6.23 states:

Address for service
6.23

(1) A party to proceedings must give an address at which that party may be served with documents relating to those proceedings. The address must include a full postcode unless the court orders otherwise.

(Paragraph 2.4 of Practice Direction 16 contains provisions about postcodes.)

(2) A party’s address for service must be –

(a) the business address either within the United Kingdom or any other EEA state of a solicitor acting for the party to be served; or

(b) where there is no solicitor acting for the party to be served, an address within the United Kingdom at which the party resides or carries on business.

Clearly therefore, as shown above, (1) all party’s must give an address for service and (2) the address must be in the UK “at which the party resides or carries on business”.

The landlord can therefore ask the court to order the tenant to provide such an address.

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Hi Adrian

When returning only a portion of a tenants deposit by chq in the post, if it was accompanied by a letter stating “please find enclosed the balance of your deposit as full and final settlement relating to the tenancy of xxxxxxx” and the ex-tenant then cashed/banked the chq would mean the ex-tenant could not change their mind or dispute the deducted amount.

I had heard using the phrase “full and final settlement” and the chq then being banked meant the person accepted it was final and there was no recourse.

Is there any legal merit in that and if so do you think the deposit schemes would accept it if there was a issue?

Many thanks

Answer:

There are two different situations covering this type of scenario and both have different results. Firstly, if there is no dispute in relation to the amount, then providing a cheque for a lower amount than the tenant is entitled to with a letter saying “full and final settlement” will not be binding (see below). However, if there is a dispute over the amount in question, the position will depend on the actions of the tenant on receipt of the money (see further below).

No dispute over the amount due

Take for example the position where there is a £600.00 deposit. There is no rent arrears or damage and therefore no dispute that the tenant is entitled to the full amount. However, despite this, the landlord sends a cheque for £400.00 with a letter saying “if you cash this cheque it will be deemed full and final settlement”. In this case, the tenant will not be deemed to have accepted the payment as full and final settlement because there was no consideration (or benefit to the tenant by doing so) and so not a binding contract.

payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole, because it appears to the Judges that by no possibility, a lesser sum can be a satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk, or robe, etc. in satisfaction is good… [as] more beneficial to the plaintiff than the money. [Pinnel's Case (1602) 5 Co. Rep. 117a].

This principle was applied in a modern dispute.  In D & C Builders Ltd v Rees [1965] 2 QB 617. The small firm had done some work for Mr. Rees but weren’t paid the £482. After a few months of being asked for the money, Mrs. Rees, acting on behalf of Mr. Rees, offered to pay them £300. She knew that they needed the money desperately but told them that it was the £300 or nothing. D & C successfully sued for the balance because she had not provided sufficient consideration.

Where the amount is in dispute

Now take an example of a £600.00 deposit paid by the tenant and at the end of the tenancy, the landlord alleges damage to the sum of £150.00. The tenant though disputes the £150.00 damage. The landlord sends a cheque for £400.00 as “full and final settlement”. Now what is the position?

The position now depends on [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']the actions of the tenant because the tenant now has consideration (or a benefit) because he may wish to accept the payment and put an end to any on-going arbitration or legal cases.

Clearly if the cheque is returned then there can be no acceptance by the tenant of the offer made by the landlord. However, if the cheque is cashed but promptly after, the tenant contacts the landlord and states the cashing of the cheque was not acceptance of the landlords offer, then it will only have been accepted as part payment [Day v McLea (1889) 22 QB 610] and not as full and final settlement.

This was also confirmed in Stour Valley Builders v. Stuart (1974) 2 Lloyds Reports p. 13 C.A where Lloyd LJ said:

As with any other bilateral contract what matters is not what the creditor himself intends but what by his words and conduct he has led the other party as a reasonable person … to believe

And also

Cashing the cheque is always strong evidence of acceptance especially if it is not accompanied by immediate rejection of the offer. Retention of the cheque without rejection is also strong evidence of acceptance depending on the length of delay But neither of these factors are conclusive; and it would … be artificial to draw a hard and fast line between cases where payment is accompanied by an immediate rejection of the offer and cases where objection comes within a day or two days

Timing is critical

In the Stour Valley Builders case, the builders cashed the cheque and it cleared on day 5. On day 7 the builders spoke to the customer and told him that the amount could not be accepted in full and final settlement. This delay of seven days was not considered fatal and it was held that the builders were entitled to treat the cheque as a payment on account.

A delay of four days after the cheque was cashed was also not considered as fatal and not an acceptance of the offer [Inland Revenue Commissioners v Fry - [2001] All ER (D) 434 (Nov)]

However, in Upfield v Marshall (Unreported 29 March 1976), there was a delay of seven weeks and this was found to be too long and accord and satisfaction was established.

It therefore appears, that the question to ask is whether the tenants conduct caused the landlord to think that the money was accepted in satisfaction.

Otherwise, if the cheque is cashed and noting else done, then, the cashing of the cheque will have been deemed as acceptance of the landlords offer of full and final settlement as was stated in Ferguson v Davies (1996) CILL 1208.

Cheques from third parties

Where a person accepts a cheque from a third party, see Bracken & Anor v Billinghurst [2003] EWHC 1333 (TCC). As a rule, acceptance from a third party will always be an acceptance of full and final settlement (whether there is a disputed amount or not).

Bank Transfers

One of the key points is there must be some act by the tenant accepting the full and final offer. This in normal cases is the cashing of the cheque and understanding that by doing so they are accepting it as full and final settlement of the disputed amount by reference to the covering letter enclosed with the cheque. However, if a landlord simply transfers the money into the tenants bank account, this may never be considered acceptance by the tenant because they will have done no action accepting the offer. It may well be argued that the tenant should promptly return the money but the point is that you are trying to prove acceptance of the original letter. You are not trying to prove “non” acceptance of the offer … if that makes sense? Basically, when offering a full and final settlement, only send a cheque!

Tenancy Deposit Schemes

Regarding the point whether a tenancy deposit scheme would accept this, it is submitted this is far too complicated for arbitrators to understand especially as there is no hearing to explain. As in all cases when disputes occur in relation to deposits, our advice is to never use the schemes dispute resolution.

It is also submitted, that the tenant will always have the right to refer a disputed amount to the schemes because the provisions contained in the Housing Act 2004 (and the scheme rules) will most likely overrule the common law principles outlined above.

Useful links

The Law – ‘Full and final settlement’

Show me the money: offers made in full and final settlement

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Dear Adrian,

I have a tenants in a 3 bedroom semi detached house and they have asked me to deal with a wasp nest in the shed.

Am I responsible or are the tenants?

Many thanks,

Answer:

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Firstly, if the tenants are good tenants, such a small job to fix would probably be best done by a landlord just to keep the Peace, in particular when the market is the way it is and good tenants can be hard to come by. However, the law would suggest this is probably not the landlords duty:

Section 11 Landlord and Tenant Act 1985 provides that the landlord is responsible for the repair of the structure and exterior of the property and this includes all parts of the estate (garages, sheds etc.) However, it seems a wasps nest is not actually damage to the structure requiring repair and therefore probably not the landlords responsibility.

In a comparable case, but under different legislation which doesn’t really apply here, it was held that the infestation of rats from time to time, was not the landlords responsibility, but if they were permanently at the property and bred there, then they may become “part of the property” and thus a defect which was the landlords responsibility [Stanton v Southwick [1920] 2 K.B. 642 .].

The contrary argument is that presumably the nest is “attached” to the structure (of the shed) and so could be argued that this gives the structure itself a defect that requires repair. Although, as a general rule, plaster which is also attached to the structure doesn’t normally apply under the repairing obligations (unless a defect in the structure caused the damage to the plaster)[Irvine v Moran [1991] 1 E.G.L.R. 261]. (But a concession to the contrary was made in Staves v Leeds City Council (1990) 23 H.L.R. 107, and approved in Hussein v Mehlman [1992] 2 E.G.L.R. 87 (county court)).

The Housing Health and Safety Rating System Guidance doesn’t mention the removal of wasps as it talks about prevention rather than cure, so although the local authority could in theory intervene under this legislation, it’s unclear on what basis.

On balance therefore, I would submit that this is the tenants responsibility, but a landlord would normally be advised to carry out the works themselves if they are good tenants in particular because the cost of works should be relatively minimal.

One final point to note, although local authorities can often be unreliable in many aspects of their work, in the case of pest control and removal, our experience is that they are very good indeed and usually much less expensive than comparable commercial companies.

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Question:

I have a large banner outside my HMO, advertising rooms to let and showing certain facilities for example broadband included in the rent etc. The local authority have requested that I remove the banner. All I am doing is advertising rooms to let just like when an agent puts up a to let board. Must I remove the banner?

Answer:

Section 224 Town and Country Planning act 1990 makes it an offence to display any advertisement without prior consent from the local authority. However, certain advertisements have “deemed consent”.

The list of advertisements which have deemed consent are listed in Schedule 3, Part 1 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (note these regulations only apply to England and I’ve been unable to locate the equivilent regulations for Wales at the time of writing).

Paragraph 3A covers deemed consent for “An advertisement relating to the sale or letting, for residential, agricultural, industrial or commercial use or for development for such use, of the land or premises on which it is displayed.”

The conditions for which such an advert will have deemed consent are:

• Not more than one advertisement, consisting of a single board or two joined boards, is permitted; and where more than one advertisement is displayed, the first to be displayed shall be taken to be the one permitted.

• No advertisement may be displayed indicating that land or premises have been sold or let, other than by the addition to an existing advertisement of a statement that a sale or letting has been agreed, or that the land or premises have been sold or let, subject to contract.

• The advertisement shall be removed within 14 days after the completion of a sale or the grant of a tenancy.

• No advertisement may exceed in area—
  (a) where the advertisement relates to residential use or development,0.5 square metre or, in the case of two joined boards, 0.6 square metre in aggregate;
  (b) where the advertisement relates to any other use or development, 2 square metres or, in the case of two joined boards, 2.3 square metres in aggregate.

• Where the advertisement is displayed on a building, the maximum projection permitted from the face of the building is 1 metre.

• Illumination is not permitted.

• No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control, and

• No part of the advertisement may be higher above ground level than4.6 metres, or 3.6 metres in an area of special control or, in the case of a sale or letting of part only of a building, the lowest level of that part of the building on which display is reasonably practicable.

It therefore seems to me that due to the size of the banner, it does not have deemed consent and therefore planning permission would be required.

Presumably an enforcement notice has been issued seeking removal of the banner. Because the penalties for failing to observe an enforcement notice are severe, you would be wise removing the banner promptly and then if you wish to put the banner up another time, first seek planning approval.

Alternatively, the enforcement notice can be appealed and the grounds for appeal are as follows:

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.

[s.174(2) TACPA 1990]

Hi Adrian

Please could you advise what the current legislation is on providing fire safety equipment.

Going back a number of years ago we had a grant for thickening floorboards, fitting fire satety doors, fitting fire extinguishers and blankets and a fire alarm. We are now being told that having the fire extinguishers and blankets maintained once a year is no longer necessary – this is information from a letting agent that wants to take over looking after the properties.

Any advice would be most welcome.

Many thanks

Answer

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Hello

Below is an extract from the latest LACORS guidance for landlords on fire safety and although not law, is very authoritative.

32.7 Fire blankets and extinguishers:

• where provided, these should be checked periodically to make sure they are in place and available for use. Extinguishers must be tested and maintained on an annual basis in accordance with BS 5306-3 and with the manufacturer’s instructions.

Many thanks

Adrian

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Hi

I have just noticed the ground 1 download and if I understand it correctly it has to be served before the tenancy starts. Do you think it is worthwhile to serve it at the start of all tenancies (if the landlord lived there) just in case grounds 8,10,11 cant be used. Also I noticed ground 1 isn’t stated on the tenancy agreements, couldn’t it be added so a separate notice isn’t needed?

Also is it straightforward to evict using ground 1? It seems strange that a judge will grant a possession order just because the landlord used to live there?

Many thanks in advance

Answer